United States Court of Appeals
For the First Circuit
No. 06-2187
LUCIA ENICA,
Plaintiff, Appellant,
v.
ANTHONY J, PRINCIPI, Secretary of the Department
of Veterans Affairs; DEPARTMENT OF VETERANS AFFAIRS,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Selya and Lipez, Circuit Judges,
and Delgado-Colón,* District Judge.
Sanford A. Kowal, on brief for appellant.
Gina Walcott-Torres, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, on brief for
appellees.
October 6, 2008
*
Of the District of Puerto Rico, sitting by designation.
DELGADO-COLÓN, District Judge. On June 28, 2004, appellant,
Lucia Enica (“Enica” or “Appellant”), a registered nurse employed
by the Department of Veterans Affairs, brought suit against the
Secretary of Veterans Affairs (“VA” or “Appellee”), alleging that
the VA failed to accommodate her disability in violation of the
Rehabilitation Act, 29 U.S.C. §§ 791 and 794(a), and that, after
she sought accommodations and submitted a worker’s compensation
claim, retaliated against her by failing to accommodate her,
subjecting her to a hostile work environment, and denying her a
promotion, in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-16. Each party moved for summary judgment
and on May 30, 2006, the district court entered a memorandum and
order denying Enica’s motion for summary judgment and granting the
VA’s motion for summary judgment. Enica v. Principi, Civ. No. 04-
11468, 2006 WL 1540486 (D. Mass. May 30, 2006). Enica appealed.
We affirm in part and vacate in part.
I. Background
The following facts are presented in a light most
favorable to the non-moving party Enica. See Plumley v. S.
Container Inc., 303 F.3d 364, 367 (1st Cir. 2002).
A. Enica’s Disability and Requests for Accommodations
1. Medical History and Educational Background
Enica was diagnosed with poliomyelitis as a child. The
disease caused her to suffer nerve damage and paralysis in her
-2-
right leg beginning at ten months of age. When she was
approximately twelve years old, she fractured her right femur and
underwent several reconstructive surgeries, leaving her right leg
shorter than her left. She also suffers from severe arthritis in
her right knee, and ankylosis, a condition causing stiffness, in
her right ankle. She walks with a limp, drives a specially
equipped car and has limited ability to lift. Enica obtained a
bachelor’s degree in nursing from New York University, a master’s
degree in psychiatric nursing from University of Massachusetts at
Lowell and has nineteen years of experience working as a nurse.
2. Employment History Prior to EEO Claim
In 1994, Appellant was hired as a Registered Nurse of
Psychiatry at the VA hospital in Jamaica Plain. Her
responsibilities included providing basic care for patients with
physical and emotional needs. Prior to commencing her employment,
she underwent a “fitness for duty” examination which concluded that
she had no conditions limiting her ability to work as a psychiatric
nurse.
In 1995, Enica learned that the psychiatric unit in which
she worked was closing. Concerned that she might be transferred to
a medical unit, she approached her manager, Mary Farren (“Farren”),
and explained that her physical condition precluded her from
performing the work required of nurses in the medical units. Enica
also informed the Chief of Nursing, Carol Coulter (“Coulter”), and
-3-
the Assistant Chief of Nursing, Cecilia McVey (“McVey”), about the
limitation of her physical condition and inability to work in a
medical unit. She was subsequently transferred to another
psychiatric unit within the Jamaica Plain campus.
Thereafter, sometime in 1996, Enica was asked to push a
patient on a stretcher to and from an electric compulsive shock
therapy (“ECT”) room and to assist him into bed. She informed
Beverly Reardon (“Reardon”), her supervisor at the time, that she
was in pain and could not perform said tasks. Reardon asked Enica
to bring a medical certificate explaining her limitations and
restrictions. In May of 1996, Enica saw Dr. Richard Wright, an
orthopedist. After an examination, Dr. Wright stated and
recommended that Enica should avoid repetitive low back activity,
repetitive or heavy pushing and pulling, and indicated that she was
not suited for medical or surgical floor assignments. In his
recommendation he noted that “[i]t is not possible to spell out
restrictions for all circumstances patient must be permitted some
discretion.”
Enica submitted this assessment to Reardon, who requested
that she undergo another medical examination to determine if she
was physically capable of performing the duties of a staff nurse.
Dr. John Harris, III, Chief of Orthopedic Surgery at the VA,
conducted an examination in July of 1996 and concluded that Enica
-4-
could not lift, carry, or push forty-five pounds.1 Dr. Harris’
report indicated that he notified Enica of his diagnosis and
advised that she go to her supervisors.
According to the VA, after Enica returned to work, her
job functions were modified inasmuch as she was excused from
carrying or pushing more than forty-five pounds.2 Once this
modification was put in place, the VA claims that Enica did not
speak to anyone in a VA management position about her disabilities
from 1996 to 2002.
In contrast, Enica claims that while Dr. Harris’ report
was timely delivered to the VA, she was neither informed of his
suggested restrictions nor provided with any information to give to
her supervisors. Instead, she alleges that immediately upon
returning from the exam with Dr. Harris, her supervisor sent her to
a medical unit where she was asked to transport a patient in a
wheelchair. Furthermore, she claims that after this limitation was
put in place, she “was still consistently required to take patients
to ECT or floated to medical units” and “assigned to do only
physical tasks for patients.”3
1
In fact, Dr. Harris stated that Enica was “barely able to push
. . . 15 lbs.”
2
In support, the VA submitted an affidavit of McVey, wherein she
states that the VA “modified Ms. Enica’s job functions by excusing
her from carrying or pushing more than 45 pounds.”
3
The district court did not consider the portion of Enica’s
affidavit which it found inconsistent with her deposition
testimony. Specifically, Enica stated during her deposition that
-5-
3. The EEO Claim and Additional Requests for
Accommodation
On April 9, 1997, Enica filed a complaint with the EEOC
alleging discrimination based on national origin and disability,
and retaliation against her for initiating EEO counseling. The
EEOC concluded that she had failed to establish her claims. The
complaint did not address any requests for accommodation or
indicate that she had been retaliated against for requesting the
same.
In 2000, the VA decided to integrate all inpatient care
services at the Jamaica Plain campus with the West Roxbury and
Brockton campuses. Over the next two years, the VA negotiated with
the labor unions to transfer employees from Jamaica Plain to either
of the two other campuses. Enica learned about the impending
transfer sometime in May of 2002, and requested to remain at the
she did not speak to management between 1996 and 2002 about her
physical condition; however, she stated the opposite in her
affidavit. As is settled, when an interested witness gives clear
answers to unambiguous questions, she cannot create a question of
fact by providing a contrary statement without any explanation of
the change. See Torres v. E.I. Dupont De Nemours & Co., 219 F.3d
13, 20 (1st Cir. 2000). Notwithstanding, Enica further states in
her affidavit that she was assigned to take patients to ECT and
consistently floated to the medical floor. She also averred that
she was trying “to get some fair treatment and to obtain reasonable
work conditions.” Accordingly, while Enica is bound by her
deposition testimony indicating that she did not discuss her
disability with management between 1996 and 2002, we accept as
true, for the purpose of summary judgment, the portion of her
affidavit claiming that throughout this time she was consistently
assigned tasks that she could not perform.
-6-
Jamaica Plain campus in a mental health position. She was
informed, however, that no positions were available.
Again concerned that her unit would close and she would
be transferred to a more physically demanding position, Enica
informed Farren that Enica had been experiencing knee and back pain
and could not walk long distances. Based on the advice of a union
representative, Enica saw Dr. Robert Provost to obtain additional
documentation of her physical restrictions and limitations. In a
note dated May 13, 2002, Dr. Provost recommended that Enica not be
placed in a position that would require her to stand for more than
five minutes at a time, or participate in either psychiatric crisis
interventions or walking rounds. When Enica gave Farren the note;
she claims that Farren became “very upset.” Beginning in May of
2002, and continuing up until June of 2002, Enica engaged in an
email dialogue with VA management regarding reasonable
accommodations.
On June 28, 2002, Enica met with William Warfield
(“Warfield”), Chief of Employee Relations, Karen Basset, Associate
Director of Nursing and Patient Care, McVey, and Lisa Cargill, a
union representative, concerning the closing of her unit at the
Jamaica Plain campus. Enica was then informed that she was being
transferred, along with ten other nurses, to a new crisis
stabilization unit (“CSU”) in West Roxbury. At this meeting, Enica
again raised the issue of her disabilities and need for
-7-
accommodation. Specifically, she was concerned that the distance
between buildings in the West Roxbury campus would require more
walking than she could safely do.
As a result of the meeting, an agreement was reached to
modify Enica’s duties at the CSU. In particular, Enica would not
be required to participate in the physical aspect of any crisis
intervention, including “Code Greens.”4 In addition, and although
not documented in writing, Enica claims that she was excused from
doing anything that she could not do. According to the affidavit
submitted by McVey, it was expected that because the CSU contained
only three beds, the work would be less physically demanding and,
therefore, more suitable for Enica.
Enica began working in the CSU on July 1, 2002. On her
first day she was asked to complete walking rounds throughout the
4
Specifically, the letter memorializing this meeting, dated June
28, 2002, states, in relevant part:
After meeting with you, Mr. Warfield, and Ms. McVey, and
discussing the scope of practice for a Registered Nurse
in the Crisis Stabilization Unit at West Roxbury Campus
. . . it was agreed that you would provide all functions
with the following exceptions/modifications:
1. You would not participate in the physical
aspects of any crisis intervention, such as a
response to a Code Green. This did not
exclude you from responding, but limited your
involvement to non-physical aspects of such a
response.
2. As indicated in the meeting I will ensure that
Nursing management at West Roxbury division is
aware of this.
. . . .
-8-
entire hospital. Apparently, because her unit had only one or two
patients per week, Enica and the other CSU nurses worked on the
medical unit and participated regularly in walking rounds.5
According to Enica, she tried not to participate in these rounds
but “got pressure from my supervisors to participate.” In
addition, the nurses in that unit escorted agitated psychiatric
patients housed on the inpatient units and provided “one on one”
assistance and supervised confused or agitated patients on a
rotating schedule every hour. This work entailed walking to
different parts of the hospital, and the distances she was required
to walk were longer than those in her previous position. Enica
estimates that she walked between one and a half and two and a half
miles per day while at the CSU. As a result, the pain in Enica’s
leg and back worsened, making it difficult for her to perform the
walking rounds.6
As best as the court can discern, on or about August 9,
2002, Enica, through her attorney, contacted an EEO Specialist,
Sharon O’Leary, complaining that the accommodation was not working
and the excessive walking was causing increased pain and risking
further disability.7 Enica requested, among other things, that she
5
Enica also participated in psychiatric team rounds conducted by
the director of psychiatry three times a week.
6
As a result, Enica took pain medication on a daily basis.
7
It is unclear whether this letter was actually sent or delivered
on August 9, 2002. Although the letter bears that date and Enica’s
interrogatory answers suggest as much, VA documents indicate that
-9-
be transferred to an outpatient unit and again be relieved from
responding to any “Code Greens” or any task requiring long walks,
such as conducting patient rounds and patient consults. A copy of
this letter was also sent to Warfield, with whom she had met in
June of 2002. On August 21, 2002, Enica contacted the Office of
Resolution Management and spoke with EEO Counselor Gregory E.
Jones, Sr. (“Jones”). She requested immediate relief from walking
to patient consults and rounds and participating in “Code Greens”
on foot. She also asked to be reassigned to the Outpatient Mental
Health Clinic at West Roxbury. In an October 10, 2002, report,
Jones noted his attempt to resolve the situation by communicating
Enica’s complaint to Warfield. After rejecting a number of Enica’s
proposed accommodations, Warfield agreed to provide her with a
motorized scooter (“scooter”) for use in her current job. Further,
Warfield agreed that Enica would not be required to work more than
she could manage until the scooter became available.
The record reflects that on September 9, 2002, the pain from
walking became so great that Enica nearly fell. As a result, Enica
was placed on paid administrative leave. While on leave, Dr.
Provost diagnosed Enica with bursitis caused by excessive walking.
In his report, he noted that Enica had developed pain in her left
hip from trying to protect her right leg while walking. He
she did not seek to initiate EEO counseling until August 20 or 21
of 2002.
-10-
“strongly” recommended that she be transferred to an outpatient
facility. Enica remained on leave until November 3, 2002.
During this time, Enica filed a worker’s compensation
claim. The Office of Workers’ Compensation Programs District
Office of the Department of Labor denied Enica’s request for
compensation because it found that her condition was not causally
related to her job. Enica disagreed with the decision and
requested an oral hearing in front of a hearing representative.
The hearing representative rejected Enica’s request, but conducted
an investigation, ultimately finding that the excessive walking at
work caused bursitis to develop in Enica’s left hip, and concluding
that she was entitled to worker’s compensation benefits.
On September 19, 2002, informal counseling with respect
to her complaint to the EEO counselor was terminated and Enica was
provided a Notice of Right to File a Discrimination Complaint. A
formal complaint was filed on October 1, 2002.
On November 4, 2002, Enica returned to work with the
scooter. The scooter successfully addressed her walking problems,
allowing her to do rounds and work with patients in different
buildings. Shortly after returning to work, however, Enica was
asked to perform tasks that she was physically unable to do.8 When
Enica objected, she was not required to perform the tasks. In her
8
On November 6, 2002, the person in charge of the medical unit
ordered Enica to physically restrain a patient. Later, on December
19, 2002, she was asked to control a combative patient who was
attempting to pull out his IV lines.
-11-
deposition, however, she testified that on one occasion she was
disciplined for objecting.
As a result of Enica’s inability to perform the requested
tasks, the VA, pending the receipt of medical information, again
placed Enica on paid administrative leave. Enica was on leave from
December 30, 2002, until April 7, 2003.
When Enica returned to work, she was assigned to the
primary care Telephone Advisory Program (“TAP”) at the Jamaica
Plain campus, the position that she currently holds. The TAP job
entails communicating with patients, pharmacies, and primary care
providers by telephone. No walking, lifting, bending, or carrying
is required.
B. Clinical Nurse Specialist Opening (Title VII Claim)
In December of 2002, Dr. Robert W. McCarley sought
funding for a Nurse Practitioner position in the Outpatient Mental
Health Clinic on the Jamaica Plain campus, and advertised the
vacancy from February 14 to March 7, 2003. Although seven people
applied, Dr. McCarley decided not to fill the position, choosing
instead to recruit a Clinical Nurse Specialist. Enica did not
apply for this position. The Clinical Nurse Specialist opening was
posted from June 5 to June 26, 2003. Appellant and one other
individual applied.
According to an affidavit submitted by Warfield, Dr.
McCarley ultimately determined that it was more economical for the
-12-
VA to combine certain funds, save certain funds from VA’s budget
and hire a psychiatrist instead of a clinical nurse. The VA
approved the request and around April of 2004 the position was
filled by Dr. Harriet Scheft. Between 2004 and 2005, there was no
communication between Enica and the VA regarding the position Enica
had applied for. In November 2005, Enica learned that said
position had been eliminated.
II. Standard of Review
A district court’s grant of summary judgment is reviewed
de novo, considering the facts in the light most favorable to the
nonmoving party. See Orta-Castro v. Merck, Sharp & Dohme Quimica
P.R., Inc., 447 F.3d 105, 109 (1st Cir. 2006); Vélez-Rivera v.
Agosto-Alicea, 437 F.3d 145, 150 (1st Cir. 2006). Summary judgment
is properly granted if the movant can demonstrate that “there is no
genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
“Once the moving party avers the absence of genuine issues of
material fact, the nonmovant must show that a factual dispute does
exist, but summary judgment cannot be defeated by relying on
improbable inferences, conclusory allegations, or rank
speculation.” Ingram v. Brink’s Inc., 414 F. 3d 222, 228-29 (1st
Cir. 2005); see also Freadman v. Metro. Prop. and Casualty Ins.
Co., 484 F.3d 91, 99 (1st Cir. 2007). In the summary judgment
context, “genuine” has been construed to mean “that the evidence
-13-
about the fact is such that a reasonable jury could resolve the
point in favor of the nonmoving party.” United States v. One
Parcel of Real Prop., 960 F.2d 200, 204 (1st Cir. 1992).
Similarly, a fact is “material” if it is “one that might affect the
outcome of the suit under the governing law.” Morris v. Gov't Dev.
Bank of P.R., 27 F.3d 746, 748 (1st Cir. 1994) (internal citation
and quotation marks omitted).
III. Discussion
A. Reasonable Accommodation
1. Collateral Estoppel
First, Enica contends that the district court erred in
refusing to apply the doctrine of offensive collateral estoppel to
the question of whether the VA provided Enica with a reasonable
accommodation. Since the application of the collateral estoppel
doctrine primarily presents a question of law, the court affords de
novo review. See Keystone Shipping Co. v. New England Power Co.,
109 F.3d 46, 50 (1st Cir. 1997).
Collateral estoppel, also known as issue preclusion,
prohibits a party from re-litigating issues that have previously
been adjudicated. See Parklane Hosiery Co., Inc. v. Shore, 439
U.S. 322, 327 n.5 (1979); In re Belmont Realty Corp., 11 F.3d 1092,
1097 (1st Cir. 1993); Rogers v. Town of Northborough, 188 F. Supp.
2d. 10, 13 (D. Mass. 2002). Collateral estoppel may be used
defensively, to prevent a plaintiff from asserting a previously
-14-
litigated claim against the defendant, or offensively, to foreclose
the defendant from re-litigating an issue that it previously lost.
Parklane, 439 U.S. at 326 n.4. Offensive use of collateral
estoppel, the form Enica seeks to invoke here, raises concerns of
fairness to the VA. See Acevedo-García v. Monroig, 351 F.3d 547,
574 (1st Cir. 2003). As such, the determination of whether the
doctrine applies is conditioned on “whether defendants received a
full and fair opportunity to litigate their claims” in the first
proceeding. Id. at 575. In this regard, Enica must establish (1)
that the issue to be precluded is the same as that disputed in a
prior proceeding, (2) that the issue was actually litigated in the
earlier proceeding, (3) that the issue was determined by a valid
and binding final judgment or order, and (4) that the determination
of the issue in the prior proceeding was essential to the final
judgment or order. Id.; Plumley, 303 F.3d at 373; Faigin v. Kelly,
184 F.3d 67, 78 (1st Cir. 1999). As the district court correctly
concluded, Enica’s proffer cannot clear the first of these hurdles.
With respect to the first element, identity of issues,
“[i]t is common ground that the reach of collateral estoppel ‘must
be confined to situations where the matter raised in the second
suit is identical in all respects to that decided in the first
proceeding.’” Faigin, 184 F.3d at 78 (quoting C.I.R. v. Sunnen,
333 U.S. 591, 599-600 (1948)). It is undisputed that the issue
addressed and resolved by the Department of Labor was whether
-15-
Enica’s injuries (bursitis) were caused by excessive walking in the
course of her employment at the VA. By contrast, the issue before
the district court was whether the VA failed to provide Enica with
reasonable accommodations in connection with her disability. This
determination involves, among other considerations, the VA’s
knowledge of her physical limitations (as they evolved over time)
and the feasibility of accommodations and interactive process
between the parties. In other words, although factually related,
the issue of whether the VA failed to provide her with reasonable
accommodations under the Rehabilitation Act was not essential to,
much less addressed, by the Department of Labor’s finding that
excessive walking at the workplace contributed to her injuries.9
See id. (“[T]he mere presence of a modicum of factual commonality
does not establish the requisite identity of issues for purposes of
collateral estoppel.”); compare Plumley, 303 F.3d at 373
(collateral estoppel as to Family and Medical Leave Act eligibility
did not apply to arbitration proceeding where issue was neither
determined or essential), with Bath Iron Works Corp. v. U.S. Dep’t
of Labor, 125 F.3d 18, 22 (1st Cir. 1997) (applying collateral
estoppel to state administrative decision that claimant’s injuries
had no lasting effect on his condition).
9
It bears mention that the factual determination of the Department
of Labor—that Enica’s injuries were caused by excessive
walking—appears largely undisputed in this case. As such, we do not
reach the issue of whether said finding would be binding in the
instant action.
-16-
Accordingly, being unable to conclude that the same
issues were considered in the previous administrative proceeding,
we conclude that collateral estoppel is inapplicable to the instant
action.
2. Failure to Accommodate
Next, Enica challenges the district court’s determination
that she failed to establish a prima facie case of failure to
accommodate under section 504 of the Rehabilitation Act, 29 U.S.C.
§ 794.10
In addition to prohibiting disparate treatment of
individuals with disabilities, the Rehabilitation Act and Americans
with Disabilities Act (“ADA”) “impose an affirmative duty on
employers to offer a reasonable accommodation to a disabled
employee.” Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 19-
20 (1st Cir. 2004)11; see also 42 U.S.C. § 12112(b)(5)(A); García-
Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 646 n.9 (1st Cir.
2000) (“[T]he ADA does more than prohibit disparate treatment. It
also imposes an affirmative obligation to provide reasonable
accommodation to disabled employees.”).
10
Enica also alleged a claim under section 501 of the
Rehabilitation Act. 29 U.S.C. §791(b). The district court granted
the VA’s cross-motion for summary judgment with respect to this
claim, finding that Enica failed to offer any evidence to support
it. Enica does not appeal this determination.
11
As a federal employee, Enica is covered under the Rehabilitation
Act and not the ADA. Nevertheless, since the same standards apply
to both the Rehabilitation Act and ADA, we rely on precedent
construing both statutes. See Calero-Cerezo, 355 F.3d at 12 n.1.
-17-
In order to assert a claim for failure to accommodate
under the Rehabilitation Act, Enica must establsh that she (1)
suffers from a “disability” within the meaning of the statute, (2)
is a qualified individual inasmuch as she is able to perform the
essential functions of her job, with or without reasonable
accommodation, and (3) that, despite its knowledge of her
disability, the VA did not offer a reasonable accommodation. See
Calero-Cerezo, 355 F.3d at 20. The VA concedes that Enica
satisfies the first two requirements, but argues that she does not
meet the third element inasmuch as she failed to establish that the
VA failed to provide her with reasonable accommodations.
In determining whether an employer has failed to provide
a reasonable accommodation, we follow the two-step analysis
outlined in Reed v. LePage Bakeries, Inc., 244 F.3d 254 (1st Cir.
2001). See Calero-Cerezo, 355 F.3d at 23. First, the employee
must show “not only that the proposed accommodation would enable
her to perform the essential functions of her job, but also that,
at least on the face of things, it is feasible for the employer
under the circumstances.” Reed, 244 F.3d at 259. Second, the
employee must prove that the request was sufficiently direct and
specific so as to put the employer on notice of the need for an
accommodation. Id. at 261; see also Wynne v. Tufts Univ., 976 F.2d
791, 795 (1st Cir. 1992).
Once the plaintiff satisfies these two elements, “the
-18-
defendant may attempt to prove that, in fact, the proposed
accommodation was not feasible and would constitute an ‘undue’
hardship.” Calero-Cerezo, 355 F.3d at 23 (citing Reed, 244 F.3d at
261). This “requires the employer to produce at least some modicum
of evidence showing that the [requested accommodation] would be a
hardship, financial or otherwise.” Id. (quoting Ward v. Mass.
Health Research Inst. Inc., 209 F.3d 29, 37 (1st Cir. 2000)).
In some cases, an employee’s request for an accommodation
may trigger a duty on the part of the employer to engage in an
interactive process. See Tobin v. Liberty Mut. Ins. Co., 433 F.3d
100, 108 (1st Cir. 2005); Calero-Cerezo, 355 F.3d at 23; Phelps v.
Optima Health, Inc., 251 F.3d 21, 27 (1st Cir. 2001); Reed, 244
F.3d at 262 n. 11. As part of this process, the employer is
“expected to engage in a meaningful dialogue with the employee to
find the best means of accommodating that disability.” Tobin, 433
F.3d at 108. Although the degree of interaction required varies in
accordance to the circumstances of each case, the process requires
open communication by both parties, and an employer will not be
held liable if it makes “reasonable efforts both to communicate
with the employee and provide accommodations based on the
information it possessed . . . .” Phelps, 251 F.3d at 28 (quoting
Beck v. Univ. of Wis. Bd. Of Regents, 75 F.3d 1130, 1137 (7th Cir.
1996)); see also Tobin, 433 F.3d at 109 (recognizing that the
standard governing the interactive process is less than clear);
-19-
Calero-Cerezo, 355 F.3d at 24.12 Where a breakdown in the process
has been identified, “courts should look for signs of failure to
participate in good faith or failure by one of the parties to make
reasonable efforts to help the other party determine what specific
accommodations are necessary.” Beck, 75 F.3d at 1135. For
instance, “[a] party that obstructs or delays the interactive
process is not acting in good faith.” Id.
Though the issue of good faith is relevant in examining
the interactive process, a showing of discriminatory intent or
animus is not required in cases alleging a failure to accommodate.
See Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 264
(1st Cir. 1999). Instead, “an employer who knows of a disability
yet fails to make reasonable accommodations violates the statute,
no matter what its intent, unless it can show that the proposed
accommodation would create undue hardship for its business.” Id.
(citing 42 U.S.C. § 12112(b)(5)(A)). Furthermore, the “duty to
provide a reasonable accommodation is a continuing one, however,
and not exhausted by one effort.” Ralph v. Lucent Tech., Inc., 135
F.3d 166, 172 (1st Cir. 1998).
Enica’s primary argument seems to be that because the VA
12
29 C.F.R. § 1630.2(o)(3) provides, in relevant part, that “[t]o
determine the appropriate reasonable accommodation it may be
necessary for the covered entity to initiate an informal,
interactive process with the qualified individual . . . . This
process should identify the precise limitations resulting from the
disability and potential reasonable accommodations that could
overcome these limitations.”
-20-
has been aware of her condition since 1996, there exists a question
of fact as to whether or not her immediate supervisors knew about
her condition, and acted to protect her.13 Simply stated, Enica
argues that her injuries were so obvious that this triggered a
continuing obligation on the part of the VA to provide her with
necessary accommodations. See, e.g., Reed, 244 F.3d at 261 n.7.
In Reed, we stated that “sometimes the employee’s need
for an accommodation will be obvious; and in such cases, different
rules may apply.” Id. In that context, we were addressing
situations where the nature of the disability and accommodation
required are so obvious that “there may be little or no need for
discussion” with the employee. EEOC Enforcement Guidance:
Reasonable Accommodation and Undue Hardship Under the Americans
with Disabilities Act, EEOC Notice 915.002 (October 17, 2002),
available at http://www.eeoc.gov/policy/docs/accommodation.html.
To the extent an employer might successfully provide an
accommodation with little interaction with the employee, such a
situation does not present itself here. Although Enica’s
disability was obvious, the record makes clear that her condition
and duties at work required different accommodations at different
times. Indeed, her doctor recognized as early as 1996 that “it was
not possible to spell out restrictions for all circumstances” and
13
For example, Enica walked with a limp, had a handicapped sticker
on her car, parked in a handicapped spot, had asked for special
accommodations previously, and had medical notes on file
recommending that her physical activities be limited.
-21-
that she “must be permitted some discretion.” More specifically,
in 1996 her limitations involved pushing or pulling patients and
did not appear to include excessive walking. As time went on and
the nature of her duties and condition changed, it became clear
that Enica could not engage in excessive walking without it causing
an inordinate amount of pain or worsening of her condition. As
such, we do not view this to be a case where a disability is so
obvious that an employer would be required to provide a particular
accommodation.
Having found that the VA was not required to provide an
accommodation on its own accord based on an obvious disability,
Appellant’s specific requests for accommodations may be grouped
into two distinct time periods; namely, her 1996 request for
accommodations relating to the pushing and pulling of patients and
her 2002 request for accommodation not to engage in excessive
walking.
a. 1996 Requests for Accommodation
In her affidavit, Enica alleges that despite the
restrictions imposed in 1996, she was continually required to take
patients to ECT or to float to medical units where she was assigned
to perform physical tasks. Although the record supports these
allegations, nowhere does it appear that she complained to her
supervisors. Rather, it appears that Enica continued performing
-22-
her duties up until 2002, without incident or objection.14 As such,
we agree with the district court that absent any communications
from Enica regarding the inadequacy of her accommodations, no
factfinder could hold the VA responsible for either a breakdown in
the interactive process or failing to correct an inadequate
accommodation since it was not made aware that a deficiency
existed.
b. 2002 Requests for Accommodation
In 2002, however, as the district court pointed out,
Enica made a number of separate, albeit similar, requests for
accommodation. Enica’s first request came in May of 2002, when she
informed her supervisor that she was experiencing knee and back
pain and could not walk long distances. To support her request,
she underwent a medical evaluation and submitted an evaluation from
Dr. Provost which recommended, inter alia, that Enica not be placed
in a position that would require her to participate in psychiatric
crisis interventions, or in walking rounds.15 Based upon the
forgoing, Enica engaged in an email dialogue with VA management
regarding reasonable accommodations to address this limitation.
14
Enica highlights that there may be situations where an
employee feels too intimidated to object to an employer’s refusal
to accommodate. See Freadman, 484 F.3d at 105. Though we agree
that such situations occur, there is no evidence that such a
situation occurred here.
15
Dr. Provost further stated that “with the passage of time, it
is possible that her disability may increase,” and that he did not
expect Enica to make a full or partial recovery from her
disability.
-23-
Enica’s second request occurred during a June 28, 2002,
meeting with her supervisors. In said meeting, Enica again raised
the issue of her disabilities and need for accommodation.
Specifically, she expressed concern that the distance between
buildings in the West Roxbury campus would require more walking
than she could safely do. As a result of the meeting, an agreement
was reached whereby Enica’s duties at the CSU were modified. In
particular, the agreement memorialized that Enica would not be
required to participate in the physical aspect of any crisis
intervention, including “Code Greens.” Further, Enica avers that
she was excused from taking part in anything that she could not do.
Shortly after reaching this agreement, on July 1, 2002,
Enica was transferred to, and began working at, the CSU. On the
day she started, she was informed that she, along with the other
CSU nurses, were required to complete walking rounds in other
medical units. That decision was given even though Enica had
previously provided a medical certificate from Dr. Provost
specifically stating that she should not take part in walking
rounds. Moreover, she was required to participate in psychiatric
team rounds three times a week. When she requested that she be
relieved from participating in the walking rounds, as her agreement
allowed her to do, Enica asserts that she was pressured by her
supervisors to complete them. According to Enica, she walked
between one and a half and two and a half miles a day. As a
-24-
result, the pain in her leg and back worsened, causing her to take
pain medication on a daily basis to alleviate the pain.
As a result of the above, Enica sent a letter to an EEO
specialist, dated August 9, 2002, complaining that the
accommodation was not working, and that the excessive walking was
causing increased pain and placing her at risk for further
disability. Said letter was copied to Warfield. Enica requested,
inter alia, that she be transferred to an outpatient unit and again
be relieved from responding to “Code Greens” or any task requiring
long walks, such as conducting patient rounds and patient consults.
On August 21, 2002, Enica again contacted the EEO office
complaining of discrimination, and requested that she be
transferred to an outpatient unit and be relieved from responding
to “Code Greens” or any task requiring long walks.16 As part of his
investigation, and in an attempt to resolve the situation, Jones,
the EEO counselor addressing Enica’s complaint, conducted an
interview with Warfield on September 6, 2002, and conveyed to him
Enica’s complaints. Sometime subsequent to the interview, and
after rejecting some of Enica’s requests, Warfield agreed to
provide Enica with a scooter for use on the job. Furthermore, he
agreed that Enica would not be required to walk more than she could
manage until such time as the scooter became available.
On September 9, 2002, Enica was placed on paid
16
The contents of Enica’s complaint were memorialized in an
October 10, 2002 report, created by EEO counselor Jones.
-25-
administrative leave because she was complaining of extreme pain.
While on leave, plaintiff returned to Dr. Provost, who diagnosed
her with bursitis caused by excessive walking. Dr. Provost also
“strongly” recommended that Enica be transferred to an outpatient
facility to “eliminate the repetitive stress to the advanced
arthritic changes in her right lower extremities.”17
Enica returned to work on November 4, 2002, and was
provided with the scooter. The scooter addressed her walking
problems, allowing her to do rounds and work with patients in
different buildings. Shortly after returning, however, Enica was
once again asked to perform tasks that she was physically incapable
of doing, and in direct contravention of her submitted medical
certificates.18 For example, on November 6, 2002, Enica was ordered
to physically restrain a patient. Later, on December 19,2002, she
was asked to control a combative patient who was attempting to pull
out his IV lines. When Enica objected, she was not required to
17
On September 19, 2002, informal counseling with respect to her
complaint to the EEO counselor was terminated and Enica was
provided a Notice of Right to File a Discrimination Complaint. A
formal complaint was filed on October 1, 2002.
18
As previously discussed, in May of 1996, Enica saw Dr. Wright,
who recommended that she avoid repetitive low back activity,
repetitive or heavy pushing and pulling, and indicated that she was
not suited for medical or surgical floor assignments. On July of
1996, Enica submitted a medical certification from Dr. Harris
clearly stating that she could not lift, carry, or push forty-five
pounds. Moreover, during the June 28, 2002, meeting between Enica
and her supervisors, it was specifically agreed that Enica would
not have to participate in the physical aspect of any crisis
intervention.
-26-
perform the tasks.19 Again, as a result of Enica’s inability to
perform the requested tasks, the VA placed her on paid
administrative leave from December 30, 2002, until April 7, 2003.20
Based on the foregoing, we find that, while it is an
extremely close question, a triable issue of fact exists as to
whether the VA provided Enica with reasonable accommodations.
While the VA certainly took part in the interactive process and
made some effort to work with Enica, as the district court
correctly pointed out, it is less than clear that it provided Enica
with reasonable accommodations. See Tobin, 433 F.3d at 108 n.7
(finding that it is “possible for an employer to satisfy its duty
to engage in ‘interactive process’ yet still fail to provide
‘reasonable accommodation’ to a disabled employee”).
The VA, for its part, argues that it was never required to
provide Enica with the accommodation of her choice, but rather
required to engage in a good faith interactive process in finding
her a reasonable accommodation. See Phelps, 251 F.3d at 27-28.
Though the VA correctly states that an employer is neither required
to provide an employee with an accommodation of her choice nor to
create a new position for that employee, we note that once an
19
Enica did testify, however, that on one occasion she was
disciplined for objecting.
20
Upon her April 7, 2003, return, Enica was assigned to the TAP
at the Jamaica Plain campus. The TAP position entails
communicating with patients, pharmacies, and primary care providers
by telephone. No walking, lifting, bending, or carrying is
required.
-27-
employer agrees to provide a particular accommodation, it must act
reasonably in implementing said accommodation. See id.; Calero-
Cerezo, 355 F.3d at 25.
Moreover, aside from the VA’s delayed response to her
complaints about the inadequacy of the accommodation, there is
evidence that the VA neglected to take substantive action in
implementing the accommodations in the first instance. In
particular, the evidence supports a finding that an agreement was
reached on June 28, 2002, at least in principle, that the upcoming
transfer to the CSU would not require Enica to walk long distances
or otherwise perform any tasks she could not physically do.21
Despite this agreement, on July 1, 2002, three days after the
meeting and the first day she reported to CSU, Enica was required
to engage in walking rounds throughout the hospital and in spite of
her objections, she allegedly received pressure from her
supervisors to do so.
The VA submits that it made the decision to transfer
Enica to the CSU based on the belief that working in a small unit
21
The memorandum memorializing the meeting between Enica and
modifications to be implemented did not indicate that she would be
exempt from performing walking rounds. Indeed, the list of duties
provided explicitly states that Enica would “[m]ake rounds of the
psychiatric patients housed on the medical units, when time
allows.” Nevertheless, in her deposition, Enica testified that
McVey and Warfield also told her that she would not have to walk
excessively, or do anything that she could not physically do.
Moreover, the May 13, 2002, medical certification from Dr. Provost
clearly recommended Enica not be placed in a position requiring her
to participate in walking rounds.
-28-
with only three beds would be less physically demanding than her
current position. Elsewhere in the record, however, the VA
concedes that because the CSU saw only one or two patients a week,
it would ask its nurses, including Enica, to perform walking rounds
in other medical units. This admission, the physical distance
separating the units and fact that Enica was required to engage in
walking rounds on the first day she reported for duty, combine to
cast into doubt whether the VA made any effort, or had any
intention, to implement the accommodation to which they had agreed
a few days prior. See Higgins, 194 F.3d at 265. Moreover, even
after the VA provided Enica with a scooter to address her walking
problems, her supervisors still asked her to perform physical tasks
that were beyond her clearly stated, and throughly documented,
capabilities. See Ralph, 135 F.3d at 172 (“The duty to provide
reasonable accommodation is a continuing one . . . and not
exhausted by one effort.”).
In sum, evidence exists from which a reasonable
factfinder could conclude that, despite her repeated requests for
accommodations during the several months before and after her
transfer in July of 2002, the VA violated the Rehabilitation Act in
failing fully to implement the accommodations it had agreed to or
provide a reasonable response once it became clear that the
provided accommodations were insufficient.22
22
Although a factfinder may conclude that the VA acted and
responded appropriately with respect to accommodating Enica’s
-29-
B. Retaliation Claim
To prove a retaliation claim under Title VII, a plaintiff
must show that: “(1) she engaged in protected conduct; (2) she
experienced an adverse employment action; and (3) there was a
causal connection between the protected conduct and the adverse
employment action.” Calero-Cerezo, 355 F.3d at 25 (citing Gu v.
Boston Police Dep’t., 312 F.3d 6, 14 (1st Cir. 2002)). Once the
plaintiff establishes a prima facie showing of retaliation, the
McDonnell Douglas burden-shifting approach applies. See id. at 26.
Under this framework, the defendant must articulate a legitimate,
non-retaliatory reason for its employment decision. Id. If the
defendant does so, the burden shifts to the plaintiff to show that
“the proffered legitimate reason is in fact a pretext and that the
job action was the result of the defendant’s retaliatory animus.”
Id.
The district court found that although Enica engaged in
protected activity, she nonetheless failed to establish the
existence of an adverse employment action. In her appeal, Enica
argues that the district court failed to consider the
circumstantial evidence supporting a finding that she was
improperly denied a promotion based upon her engaging in protected
condition, sufficient evidence exists in the record at this time to
withstand summary judgment.
-30-
activity.23 Although circumstantial evidence may certainly
establish discriminatory motive, see E.C. Waste, Inc. v. N.L.R.B.,
359 F.3d 36, 42 (1st Cir. 2004), Enica fails to point to any
evidence to support such an inference. All she claims is that the
district court improperly relied upon the purportedly inadmissible
hearsay affidavit of Warfield, stating that the nursing position
Enica applied for was never filled but instead eliminated, because
it was deemed more cost effective to hire a psychiatrist instead.
Even assuming, arguendo, that it was error to rely on
Warfield’s affidavit, Enica does not point to—nor can we find—any
direct or circumstantial evidence indicating that the VA’s failure
to award her the position that she applied for was done in
retaliation for engaging in protected activity. See Conto v.
Concord Hosp., Inc., 265 F.3d 79, 81 (1st Cir. 2001) (noting that
the Federal Rules of Appellate procedure require that appellants,
rather than the court, ferret out and articulate the record
evidence considered material on appeal).
IV. Conclusion
Although Enica failed to present sufficient evidence to
meet her burden of establishing that the VA failed to accommodate
23
Before the district court, Enica also identified the failure to
accommodate her disability and the existence of a hostile work
environment as identifiable adverse employment actions. Although
she does not raise this argument on appeal, we nonetheless fail to
find support for either theory here. Though Enica testified in her
deposition that she was once disciplined for not performing a task
which she could and would not perform, this general averment is
insufficient to survive summary judgment.
-31-
her disability in 1996 or retaliated against her for engaging in
protected activity under the Rehabilitation Act, we find that there
is sufficient evidence on record to establish a triable issue as to
whether the VA failed to implement the accommodation requests at
the time of Enica’s transfer to the CSU in 2002. Accordingly, the
trial court’s judgment is affirmed in part and vacated in part.
Each side shall bear their own costs.
-32-
Enica v. Principi
Court: Court of Appeals for the First Circuit
Date filed: 2008-10-06
Citations: 544 F.3d 328
Copy CitationsCombined Opinion